September 30, 2015

The Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights, and Federal Courts is holding a hearing Tuesday called “Opportunity Denied: How Overregulation Harms Minorities.” I’ll be testifying about how occupational licensing laws and Competitor’s Veto laws exclude would-be entrepreneurs from the marketplace—with disproportionately negative consequences for members of minority groups—and how Congress could act today to protect the fundamental human right of economic liberty against unjust state interference.

Licensing laws tend to have particularly harsh consequences on members of minority groups for a couple reasons. First, if a law requires a person to have, say, a college degree to practice the trade of interior design (which is the law in Florida), people who have less money and time to spend in college will find that avenue of opportunity closed to them. Since black and Hispanic Floridians are about 30 percent less likely to have a college degree, they will suffer more from this absurd licensing requirement than others will. Competitor’s Veto laws that forbid a person from practicing a trade unless they get permission from the businesses already operating in that industry are also very likely to create a sort of Old Boys Network, and to exclude entrepreneurs who lack political connections. Second, in a more general sense, any law that restricts economic opportunity for some to benefit others—as licensing laws tend to do—are likely to benefit those who have more political influence and can therefore get the government to regulate in ways favorable to them. Since members of minority groups have less political influence, they tend to be the ones excluded.

Among the reforms Congress could enact immediately to protect economic liberty against unjust interference by states:

1) Civil rights legislation to protect economic liberty. Sadly, the right to earn a living is America’s most neglected civil right. Civil rights legislation that made crystal clear to state governments that they may not abridge this fundamental human right, and which armed citizens to defend themselves against government exploitation, would be the best thing Congress could do today. We would never tolerate states riding roughshod over free speech or freedom of religion—yet today the federal government tends to ignore its responsibility under the Fourteenth Amendment to protect economic liberty against state depredations.

2) Spending Clause legislation conditioned on the reduction of barriers to economic freedom. If the federal government is going to spend money on state job-creation programs, it should condition those funds on the states agreeing to reduce its restrictions on the right to earn a living. As the White House recently recognized, about a third of all Americans need government permission to do their jobs—and many such restrictions are patently ridiculous, like the Louisiana law requiring a license for florists, or the Florida interior design licensing requirement. These restrictions don’t protect the public—they protect existing businesses against competition. That’s unjust and unconstitutional. Congress could enact an Economic Freedom Restoration Act modeled on RFRA to protect economic freedom.

3) Reduce antitrust immunity for state government entities. Sadly, states frequently create cartels that can prohibit their own competition—and then are exempt from federal antimonopoly laws. Congress should reduce or eliminate the Parker immunity doctrine so that the antimonopoly laws target the real monopolist: the government.

September 17, 2015

The fact is, Lord Coke had no authority for what he states, but I am afraid we should get rid of a good deal of what is considered law...if what Lord Coke says without authority is not law. He was one of the most eminent lawyers who ever presided as a judge in any court of justice, and what is said by such a person is good evidence of what the law is, particularly when it is in conformity with justice and common sense.

I'll be speaking today at the Cato Institute's Constitution Day event about the North Carolina Board of Dental Examiners v. FTC case. You can watch online, and you can read my article about the case here.

September 03, 2015

"This easy-mannered fellow had an infectious grin and an automatic warmth, Pug thought, that in a trivial way was like the President's. Some people had it, some didn't. He himself had none of it. In the Navy the quality was not overly admired. The name for it was 'grease.' Men who possessed it had a way of climbing fast; they also had a way of relying upon it, till they got too greasy and slipped."

September 02, 2015

A few people have sought to correct my assertion in the CRB that Star Trek was modeled on Gulliver's Travels. They've cited the (commonplace) proposition (that all Star Trek fans have heard a million times) that Roddenberry was imitating Wagon Train and Horatio Hornblower. Yes, he did do the latter. But as Marc Cushman explains in These Are The Voyages, the definitive history of the series, Roddenberry used these examples to explain the show. His inspiration for the show was "to be a modern-day Jonathan Swift," and he aimed the show in precisely that direction. "I always enjoyed Jonathan Swift," Roddenberry said. "It always seemed to me the type of writing I was doing was like what Swift did." (Vol. 1, page 1). The comparison to Wagon Train was actually devised by producer Sam Peeples, in an effort to sell the show to the networks. It was not Roddenberry's idea. (pp. 24-25.)

Update: My friend Scott (whose middle name is Kirk, so he knows what he's talking about) points out that in Inside Star Trek: The Real Story, Herb Solow and Bob Justman report that Roddenberry was so influenced by Swift that they briefly considered naming the starship captain "Gulliver" and even titling the show Gulliver's Travels.

September 01, 2015

In 2006, my book, Cornerstone of Liberty: Property Rights in 21st Century America, was the first book about the Kelo decision and the backlash it generated, written by a legal scholar. For the 10-year anniversary, Christina Sandefur and I have thoroughly rewritten and updated it to include not only the full story of Kelo and its aftermath, but many other recent developments in the law of private property rights, including Arizona's Private Property Rights Protection Act, the Sackettand Koontzcases, and even the film Still Mine. The book will be published early next year, and we’ll have more to say about it then, but you can pre-order it on Amazon today.